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TMI Blog2023 (7) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... finition of input service in terms of Rule 2(l) of CCR 2004, they would be eligible to take the cenvat credit. The only condition being that the input service should not be under the exclusion list. There is also no allegation that the Show Cause Notice to the effect that the services rendered under these invoices are not falling within the definition of Rule 2(l) of the CCR 2004. The entire case has been built on the ground that absolutely no service was rendered by the car dealers. For coming to this conclusion, the Department has relied upon only two Recorded statements of the dealers out of more than 100 dealers of the Appellant. Even these two officials have given a different version when they were cross examined. In such a case no evidentiary value can be placed on the Recorded Statements of these officials. Further there is no allegation coming up in the Show Cause Notice that TBSS have not recorded the transactions with car dealers in their books of accounts. Reliance placed in the case of M/S. MODULAR AUTO LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, CHENNAI [ 2018 (8) TMI 1691 - MADRAS HIGH COURT] where it was held that Therefore, unless and until the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of the officials of TBSS as well as from some officials of the automobile dealers. These Statements are relied upon by the Department to issue the Show Cause Notice. The Show Cause Notice alleged that the input invoices raised by the automobile dealers do not contain the details of the services rendered by them to the Appellant. As a matter of fact, it was alleged that the service itself was not provided by the dealers to TBSS and only Invoices were raised. Thus this was more of a paper transaction without any service being rendered. Therefore, the Show Cause Notice was issued on the ground that the cenvat credit taken by them is not legal and proper. Demand was issued for Rs. 44,33,35,282/-. The Appellant requested for opportunity to cross examine the officials of the dealers whose Recorded Statements were relied upon by the Department to issue the Show Cause Notice. The Appellant was granted this request and the cross-examinations were conducted. After due process, Adjudicating Authority confirmed demand along with interest and penalty. Being aggrieved by the impugned order the Appellant is before the Tribunal. 2. The Learned Counsel appearing on behalf of the Appellant s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Similarly, another official Shri R. Manoharan official of another Company has admitted that manpower, internet connection, computers are being utilised for issuing the Insurance policy through TBSS portal. He also confirmed that they have incurred expenses on such facilities. The Learned Counsel submits that the cross examination proves that whatever statement was recorded by the investigating officers was not correct and cannot be relied upon to press the Service Tax demand when the report of the cross-examination directly goes against the initial statements given by them. Hence, he submits that the Recorded Statements of these officials have no evidentiary value. He also points out to the Recorded Statement of the official of the TBSS, wherein he has categorically replied that the dealers are providing the infrastructure facilities, manpower, electricity etc. Therefore, the entire premise of the Show Cause Notice which is totally based on the Recorded statement of just two officials of two car dealers out of more than 100 dealers spread all over India, has absolutely no legal sanctity. He submits that since the Service Tax paid by the dealers at their end has been accepted as pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the foregoing, he submits that the present Appeal is required to be allowed. 6. The Learned AR submits that the DGCEI investigating officials have found that no service was rendered by the car dealers. They have also obtained statements from the officials of the car dealers who have confirmed that such services were not rendered by their firms. He reiterates the findings of the Adjudicating Authority to justify the confirmed demand. 7. Heard both sides and perused the documents. 8. From the documentary evidence placed before us, there is no dispute that the Appellant, the car dealer and the insurance company have entered into Tripartite Agreement at the very first stage. These Agreements have been entered into much before the investigation/enquiries were initiated. Therefore, there is nothing to indicate that the veracity of such documents is liable to be questioned. This Agreement clarifies role of the car dealer and the acceptance letter from their side shows the details of activities being undertaken by them. Subsequent to 01.07.2012, the Invoices raised by any service provider need not specify as to under what category of service they are providing the services. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, unless and until the assessment made on BIL was revised, which obviously could have been done, at this juncture, on account of the expiry of the period of limitation, the interpretation given by the Commissioner (Appeals) as well as the Tribunal with regard to the nature of invoice raised on the assesses is unsustainable. Furthermore, we find that the reason assigned by the Tribunal in paragraph 6.2 stating that the activity performed by the BIL for monitoring of production activities of the assesses cannot by any stretch of imagination be considered as an input service or in relation to the manufacture of final products of the assesses, is a statement, which is unsubstantiated by any record. At best, it can be taken as a personal opinion of the Tribunal, which could not have been a reason to reverse the credit availed by the assesses. [Emphasis Supplied] 10. In the case of M/s. Cholamandalam MS General Insurance Co. Ltd., Chennai Vs. The Commissioner of GST and Central Excise reported at [2021 (3) TMI 24 - CESTAT CHENNAI]. 6.2 From the above, it can be seen that the case of the Department is that the payout paid by the appellant to the dealers on the OD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Cenvat credit by the appellant, availment of such credit is in conformity with the Cenvat statute . We find that in an identical case, Cenvat credit was denied by the Department, holding that the invoices issued by the automotive dealers are false/fraudulent/invalid, since no service of the description contained therein was rendered by the auto dealer. The dispute was resolved by the co-ordinate Bench of the Tribunal in the case of M/s. Cholamandalam Ms General Insurance Co. Ltd. (supra), holding that since the service tax was paid by the auto dealer, under the taxable head of Business Auxiliary Service and the assessment of auto dealer has not been re-opened or questioned, credit availed cannot be denied to the insurance company. This is also the ratio of the judgment of the Hon ble Supreme Court in the case of MDS Switchgear Ltd. (supra), wherein it was held that once the tax liability has been discharged and accepted by the Department, the consequential Cenvat credit cannot be denied at the recipient s end. [Emphasis Supplied] 12. In the case of M/S. Bajaj Allianz General Insurance Co. Ltd. v. Commissioner of CGST CE, Pune-I, [2022 (10) TMI 1165 - CESTAT MUMBAI]. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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